Museums and Arts Organizations At Risk for Losing IRS Tax Exempt Recognition: Is Your Organization on the List?

The IRS recently published a long list of non-profits that have not filed appropriate forms for the last three years. Many museums, historical societies, and arts organizations are featured. These groups risk losing their tax-exempt status if action is not taken soon.

The IRS is giving organizations the opportunity to keep their tax-exempt recognition so long as paperwork is filed by October 15, 2010.

See if you are on the list at
http://www.irs.gov/charities/article/0,,id=225889,00.html?portlet=7.

The Display of Art - A Fiduciary Duty of the Museum

Recently Eli Broad, art collector and philanthropist, told the American Association of Museums about its members' duty to take art out of storage and put it on display. “If 90% of your work is in storage you need to begin lending it to other institutions. Get art out of the basements,” The Art Newspaper reported.

The fiduciary duties of care, loyalty, and obedience obligate art museums to display their works. Museums are generally institutions legally formed for the public good. They hold works in trust for the viewing public. When works are accessioned and not displayed, museum boards of directors may be putting themselves at risk of violating their fiduciary duties.

While these duties have not been traditionally enforced by state attorneys general, the rise in deaccessions by institutions to raise revenue for operating costs could prompt greater scrutiny of these fiduciary duties. Taking works out of the basement makes good legal sense.

Cycling in Canada

I have borrowed a mountain bike and been cycling around Albert County, New Brunswick.  There is a mandatory helmet law here for adults as well as children.  I am unable to report on how well respected, or enforced, this law is, as I have not come across another cyclist on my travels (save a few young children riding helmetless on the pavement).  [Postscript: I have now seen a few, but the only adult I have seen wearing a helmet was in the City of Moncton and he was on the pavement].  If the Provincial legislature were serious about promoting cycling they could usefully start by cracking down on the pet dogs that are permitted to roam the rural roads.  Many roads here have virtually no traffic.  The wildlife is generally shy.  Locals tell me they seldom see bears, but I spotted one this afternoon on my ride.  Travelling more slowly and more quietly on a bicycle makes it possible to see a lot that is hidden to the motorist.  At first I thought I saw a very large dog but as I got closer it was clearly a black bear,  I slowed right down, unsure what to do, and was somewhat relieved when a pick up truck coming the other way caused it to spring back into the woods.
Domestic creatures (dogs) are intrigued by the unusual sight of a cyclist and are inclined to give chase; so far I have been able to outsprint them but if I encounter one going uphill a confrontation seems possible.
I am starting to stick to 'busier' roads where the occasional passing car means that owners have trained their pets to stay off the roads and the more dangerous wildlife is likely to be some way back in the woods.
Motorists here are generally highly considerate of cyclists; this may be the opposite of 'safety in numbers'.  I am sufficiently unusual to be noticed and it is easier to give a cyclist plenty of space if nothing else is around and I am probably the only cyclist they pass in a week.
It is good to have challenges that differ so much from those I face on the usual commute into work.
Albert County, New Brunswick...more bears than people

The Mail Must Get Through

My post arrives at home delivered by a postman on a bicycle.  He has always seemed very happy with his job and shows a healthy interest if I happen to be tinkering in the garage with one or other of my bikes on a Saturday morning when he arrives.  Certainly if I were a postman I would very much rather deliver on a bicycle then by van or by cart.  It is a very great shame that the outgoing chief executive of the Post Office, Mr Crozier, called time on the delivering of mail by posties on bicycles.  His replacement, Ms Greene, is under some pressure to reverse this decision.
Ms Greene is moving across the Atlantic having previously headed the Canadian postal service.  I happen to be writing this post in Canada and am having an opportunity to observe first hand a culture more motor-centric even than our own.  Infrastructure is quite unambiguously devoted to the private motor car.  Only the very hardy few cycle here.  Postal delivery through the letterbox has, save perhaps in some city-centres, been abandoned for van drops into multiple mailboxes on street corners, in the suburbs, or has to be collected by the customer (almost invariably by car) from the village post office, in rural areas.  The elderly and disabled are reliant upon friends, neighbours or relatives to go and pick up their post for them.
The internet has of course transformed the postal service everywhere.  It is rare now that I write a letter to a friend or relative or send a cheque through the mail.  E-mail and internet banking have done away with the need for all that.  Instead I order a lot of goods over the internet and rely upon my postie to deliver parcels of books, bike parts and electronics to my door.  This can, though, still be done by bicycle using cargo bikes or even tricycles where necessary.
Mr Crozier has justified his decision by refering to Health and Safety considerations but this is perplexing.  Posties will be healthier delivering on a bicycle and cyclists will be safer with fewer vans on the streets; witness my close shave with a Post Office van last month.
CTC have launched a campaign to seek to persuade Ms Greene to reverse Mr Crozier's decision.  This campaign has my support.
The Canadian postal service is not, I think, one to emulate.

Cautionary Comments as the ADA Nears Adulthood

Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success. 

So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy 15th13th Birthday to the ADA).

Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.

Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.

To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences. 

The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.

Think about the law works.

The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability).  To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.

But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.

In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately

With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.

But are they disabled? As defined under the ADA, not nearly as easy.

And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.

And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.

There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles --  that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.

I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.

Dealing a $2 Million Dollar Verdict in the California Wine Country

Sexual comments and jokes, including a Levitra pen that apparently grows in length, followed by a complaint with no follow up and then a termination were what a Sonoma County jury apparently believed was the hand Shannen De La Cruz , a minimum wage card dealer, had been dealt. $2 million harrassment verdict against Petaluma card room

Although it is easy to imagine how the comments contained in the newspaper story could have been made and taken by everyone as funny, it is equally clear that as it came across in the court room, the jury was offended, not amused.

One factor that certainly did not help the company was the testimony of four other women, including one who had settled her own case. Making that testimony probably even more powerful, she was the human resources chief to whom De La Cruz had reported the harassment. The unresolved issue of how much "me too" evidence should be admitted is an on-going danger of these types of cases.

Although with $5 million year in revenues it's hard to think of the casino on the receiving end of the jury verdict as a really small business, it is certainly no colossus. And what would tend to get almost any small business owner's attention is that the jury verdict amounts to 2/3 of the company's net worth.

Now as I repeatedly mention in reports of MDV's, there is a long way between jury verdict and payment and it is highly likely that any amount ultimately paid, if any, will be considerably less. But that a jury knowing the employee's financial net worth, felt it appropriate to give 2/3 of it to one ex-employee, has to be a sobering thought when contemplating placing one's fate in the hands of a jury.

Kudo's For Giving the Bad as Well as the Good

I am not a fan issuing press announcements following a trial victory. To quote an over used Seinfield line, "not that there's any thing wrong with it ..... ", it's just not my cup of tea.

Similarly, I have never mixed (at least that I can remember) my own personal practice results and my blogging, or at least not in any way that they were identifiable.

Others do, although generally they only give the favorable results.

So I was pleasantly surprised to find the following post, Kent County Jury Finds for School District in O’Neill v. Warwick, on the blog of the Employment Law Group. If you check out the story you can see that in this case their client did not prevail before a Rhode Island state court jury.

I admire anyone who actually tries employment law cases to a jury. And if someone is going to announce their wins, I would suggest that they follow the example of the Employment Law Group and shows us all the results, not just the wins.

If you are clicking through to look at their blog, you might look around as it is also an excellent site for developments in the employment law area, particularly in one of the fastest growing parts, whistleblower cases.

CBA-FLSA-State Law? Is It Like Rock-Paper-Scissors?

Unfortunately for companies that operate in more than one state or are intently focused on the Fair Labor Standards Act, the answer is no.

Unlike the kid's game,  where the winner is variable, when deciding wage and hour compliance questions, the answer invariably seems to be -- state law tops all.

Judge Easterbrook's short 7 page opinion in Spoerle v. Kraft Foods Global, Inc. (7th Cir. 8/2/10) [pdf] is a good example and (surprisingly) the first appellate decision to address at least one variation of this non-preemption issue. The question was what happens when a CBA which specifically excludes donning and doffing from time worked as permitted under Section 203(o) of the FLSA, runs into a state statute which does not have a similar exclusion? The answer under Section 218(a) according to Judge Easterbrook: state law prevails; employer loses. Here that translates to a $2.2 million dollar judgment on behalf a group of employees against the employer.

This may be the first for this specific issue, but it is not the only time it is a problem. See Union Bargaining Agreements Likely Cannot Waive Overtime Pay Rights, at the Overtime Advisor for a similar issue brewing in Nevada.

If I were rewriting wage and hour law, and I wish someone would ask me to do so, starting with Section 218(a) might not be a bad place to start. Compliance for companies that truly want to comply is hard enough when it is one law, but one law and 50 possible variations is a little too much federalism at times.

If it were truly protecting individuals from abusive treatment that would be one thing. But here, Local 538 of the UFCW, the employees' representative, and the company agreed  that donning and doffing time would not be paid. No doubt elsewhere in the CBA that benefit to the company was offset by a benefit to employees, more than likely higher hourly wage rates.

So who really benefits from this $2.2 million decision?

The workers get all that they bargained for, plus a substantial windfall. Lawyers for the company and the plaintiffs (assuming that the judgment is not reversed by the Supreme Court) will have been well compensated. The Company will be out $2.2 + million dollars, which in classic economic terms likely means consumers will now have to pay more for their products.

I am sorry I must have missed something. Why is any of this a good thing?

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